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EPO AC says no to Battistelli & yes to the rule of law

The Administrative Council of the European Patent Office (EPO) has rejected the proposal from the President, Benoit Battistelli, (reported here) which would have seen them bypass the Enlarged Board and proceed directly to dismissal of a Board of Appeal member, contrary to Article 23 EPC. Instead, the matter has been formally referred to the Enlarged Board with a request that it make a proposal for dismissal. The decision appears at the end of their Communiqué, posted in full below.

While this was the only credible course of action, the AC delegates are nevertheless to be commended for resisting the pressure from the President to bypass the niceties of due process.

Munich, 15 October 2015

145th meeting of the Administrative Council of the European Patent Organisation (Munich, 14-15 October 2015)

The Administrative Council held its 145th meeting in Munich on 14 and 15 October 2015 with Jesper Kongstad, Director General of the Danish Patent Office, in the chair.

After the Chairman's report on the most recent meetings of the Board of the Administrative Council, the President of the European Patent Office, Benoît Battistelli, presented his activities report (to be published shortly on this website). The Council congratulated the President, his management team and the Office staff for excellent results achieved in the period under review.

Later, the Council heard a status report on the Unitary patent and related developments, given by the Luxembourg delegation, representing the country holding the EU presidency for the second half of 2015.

The Council further heard the reports of the Chairman of the Select Committee on its 16th meeting, held just ahead of the Council meeting, and of the Chairman of the Committee on Patent Law on the Committee's 45th meeting.

Concerning "Legal and International Affairs" the Council adopted a set of amendments to the Implementing Regulations to the EPC regarding handwritten amendments in opposition - Rule 82(EPC), on the one hand, and constitution, maintenance and preservation of files - Rule 147, on the other hand (the corresponding decisions CA/D 9/15 and CA/D 10/15 will be published shortly on this website).

The Council was informed of the results of a user consultation on the orientations for a structural reform of the EPO Boards of Appeal which had been presented to and endorsed by the Council at its 143rd meeting in March 2015.

The Council decided to initiate a review of the social situation at the European Patent Office after five years of reform setting and implementation.

Several measures could contribute to a possible progress in this context:

aiming at the elaboration of a negotiation strategy preserving all the results already obtained

launching a social study, in close co-operation with the President

The Council also dealt with the facts established by its Disciplinary Committee in a recent case involving a high-ranking EPO staff member having judicial functions. As to this case:

The Council took note of the assessment by the President of the Office of the seriousness of the misconduct at issue.

The Council observed that the Disciplinary Committee expressed the view that the relevant rules and general principles of law were correctly applied throughout the investigative and disciplinary procedure and assessed the facts brought forward during the investigation.

The Disciplinary Committee focussed on acts of unauthorised disclosure of non-public information and critical opinions relating to Board of Appeal activities outside the EPO, while using pseudonyms as well on activities of spreading accusations and attacks or threats against the EPO and its members, either directly or indirectly using anonymous statements and pseudonyms, both inside and outside the EPO. The Disciplinary Committee concluded that the appropriate sanction is dismissal pursuant to Article 93(2)(f) of the EPO Service Regulations.

The Council endorsed the opinion of the Disciplinary Committee that the appropriate disciplinary measure is dismissal. Pursuant to Article 23(1) EPC, the removal from office of a member of the Boards of Appeal is possible on a proposal from the Enlarged Board of Appeal. Such procedure can be initiated by the Administrative Council in accordance with Article 12a of the Rules of Procedure of the Enlarged Board of Appeal.

As a consequence, the Council requested the Enlarged Board of Appeal to make a proposal for the removal from office of said staff member.

Merpel initially thought she detected, in the section dealing with the "social situation" a recognition by the AC that the unrest and low morale in the Office need to be dealt with, in spite of repeated denials from Mr Battistelli.

However, launching a social study "in close co-operation with the President" deprives that study of any credibility. A report which is vetted, contributed to, and possibly edited by the President will be a whitewash. If the people carrying out the study are not able to express themselves freely, i.e. if they work in the office or are engaged and briefed by the management of the office, then it will be a whitewash. It sounds like the AC wants to be project an air of concern, but is in no way interested in properly understanding the issues. If the AC was at all serious about understanding the social situation and dealing decisively with the rot, they would engage an independent, credible firm to investigate the "social situation" and would politely instruct the President to co-operate with the study. That's not what this sounds like.

EPO AC says no to Battistelli & yes to the rule of law
Reviewed by Merpel
on
Thursday, October 15, 2015
Rating: 5

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114 comments:

Battistelli proposed to violate the European Patent Convention and attempted to make the Administrative Council complicit this wrongdoing. Now Battistelli has lost face and has no legitimacy after his major failure during the AC.

EPO staff is bound by the EPC, but they have to work under a President who does not respect it. It's astounding.

The cynicism of the EPO communiqué is appalling. The social study "in close co-operation with the President" will end up like the union recognition project going nowhere as slowly as possible.

And what about the investigation of staff representatives launched by Elodie Bergot (PD HR) with the help of Control Risks? Did the AC tell BB to stop it? Will Elizabeth Hardon be dismissed? And what about all the other SUEPO executives?

This has just appeared in the Dutch press:http://fd.nl/economie-politiek/1123222/systematische-campagne-tegen-europees-octrooibureauSimilar articles will no doubt come out in other places.Somebody seems to have a sudden interest in demolishing the image of the accused employee before his case comes up again before the EBA, by leaking absolutely confidential information. Who can it be?

So, the Disciplinary Committee of the AC has recommended dismissal of the Board member - apparently without hearing from anyone other than BB (and/or his henchmen); and the AC would like the EBA therefore to request that the AC dismiss the member. Does no-one on the AC or its Disciplinary Committee see a problem with the idea that "BB says this guy has been bad, BB wants him gone, so we should ask the EBA to ask us to fire him, so that we can fire him"?I hope that the EBA will hold its ground, and say that in the absence of proof of wrongdoing by the member, given in a proceeding in which the member is given a full opportunity to put on a defence, they are disinclined to roll over and play dead for BB.

Pseudonyms...inside and outside the EPO. Am I to read into this that the Board member was "caught" posting material by the spyware installed on the Isar building computer? If so this goes totally against German law (Datenschutz). But of course Big Brother doesn't care for such things. But it will be interesting if the spying needs to be publicly acknowledged in order to bring the Board member down. Because members of the public like you and I can use those computers too, and as a non-EPO employee I enjoy the protection of German law and the attention of the data commissioner.

The bit I find the most revealing is "aiming at a negotiation strategy preserving the results already achieved". This looks like the old, familiar "swallow what we've done up to now, and we promise it will be different in the future" tactic. It even used to fool people sometimes in the past, but only when practiced by Presidents and managers who could be believed to have some limits to their megalomania. This is not the case with Battistelli, and I suppose we can be grateful therefore that no-one on the staff will be taken in for a second, whatever about the self-serving quislings on the AC.

It's nice to see that Merpel believes in the goodness of man. Had she worked at the EPO sometime during the last couple of years, she'd be much less inclined to take at face value that which has just happened. True, the board member wasn't sacked this time - but the AC now requests the EBA to give them a decision which allows them to do so at the next AC meeting . What's happened here is just flannel. BB got what he wanted on every other front ("the AC congratulated the president ...")Slipped in by BB without it being noticed is, among others, a totally unnecessary change in pension regulations, which in future will require every pensioner to disclose to the EPO every detail of their confdential national income tax return in order to get a tax compensation to which pensioners have always been entitled (incidentally, EU pensioners don't require anything like that because their pensions are not subject to national income tax). Moreover, the new system may delay those payments by several years - and let's be honest, several years is a time frame not always available to pensioners (another way of saving money for the emperor to use for entertaining his AC cronies?)In short, while appreciating Merpels good work on behalf of the truth, I personally think she is extremely naive if she believes the AC reigned in BB. Remember the "demand" by the AC that management must negotiate in good faith concerning staff unions? Where is that now (see the case of Elizabeth Hardon). An if Merpel falls for the evil magicians slights of hand, what chance do the dumbos on the AC have to see through what is being done?. It is thanks to their active and passive collaboration, that the system is now rotten to the core, but I guess one could not possibly demand that they understand or even want to understand (if they did, they would lose so called "financial assistance" (spelt "B. R. I. B. E. S.") from the Office on a massive scale).So, please Merpel think again! Perhaps the smoke screen was even created specifically for your benefit in which case you should feel flattered. Yet, don't believe for one moment that BB would accept any kind of defeat, unless it is for tactical reasons. And please keep in mind that the top management of the EPO are not merely corrupt (something one tends to accept in a politician) but totally evil, which should never be accepted. Incidentally, where where are the vociferous journalists who so often pride themselves on defensing the basic rights of man, where is the German Government, which released half its country from tyranny and Stasi and political oppression only half a generation ago???P.S. I for one have plenty of jobs down here for folks like those from Senior EPO Management

Battistelli is clever enough to have understood that a decision by the EBA - which has often reaffirmed its adherence to the foundamental principles of human rights - can only be a debacle for him and his puppets. Driven by his rage and covered by his immunity, he will now destroy the guy who allegedly dared to stand up to him by orchestrating an absolutely merciless press campaign. Watch this space, soon.

I don't understand:the "request" of the AC to the EBA to make a proposal for the removal from office is an order or what?The AC appears to base its request on the opinion of the Disciplinary Committee (who are these guys btw?), but can the EBA make a proposal based on the opinion of someone else? Are they not entitled to form their own opinion before making a proposal?

Oh no they weren't. They received compensation to which they weren't entitled under the EPC - this was only removed when, after many years, someone read the EPC. Rule of law should apply both ways don't you think?

Dr. Faustus should know - after all, literature tells us he has a close relationship with Belzebub/Mephisto. But shouldn't it be BB's actions that should be considered ott, rather than a post on this blog?

I must have misread months of blogs and comments. Everyone was saying how wrong this was and was just a case of the President abusing his power. Looks like it must have been the only credible course of action and the only fault of the President was to attempt to break a rule to speed up justified justice.

Still, good to see the Kats and still spin this one to support their anti-President crusade.

Is there a bright side? The AC asks DG3 for a proposal. So DG3 can now put something on the AC desk that has not gone via the President's Desk. I had thought one of the problems in all this is that the only material that can be received in evidence by the AC is stuff that has passed over the Desk of The President. Well, now, the AC can receive something more.

DG3 must choose. Does it stand behind its embattled member or not? Seems to me that, for the members of the AC, that's a reasonable question. If the DG3 family won't support its beleagured family member, why should the AC?

Who can blame the AC Member states for following the good old principle of never taking a painful decision until one absolutely has to?

I do wonder, though, whether there is something deeper here that baers scrutiny. The present situation is essentially unprecedented - the interplay of the various EPC articles is being tested for the first time.

The EBOA is composed of judicial officials who are globally-respected in the field of patent law.

However, the EBOA, I imagine, has very little expertise or demonstrated competence in the fields of general civil law, criminal law, employment law, regulation of investigatory powers, due process, and the like. Such expertise, I believe, is not at all a critical factor in recruitment of EBOA members, and they are hardly given the opportunity to demonstrate such competence. In the UK, decisions of tribunals, government departments and ministers are subject to independent judicial review by a judge who is versed (or is supposed to be versed) in the applicable law, and who is assisted by m'learned friends.

Accordingly, objectively, without mere reference to the EPC, how can it be robust that the EBOA, and not some other body with competence in the legal issues arising, charged with the final say on whether a member of the EBOA can be removed from office? Is it simply a question of Magna Carta and the right to a trial by a "jury of his peers"? Or are there parallels elsewhere?

It strikes me that the EBOA having the final say in this matter might be inconsistent with some aspects of human rights law, if they have the sole power to dismiss, but are in practice not competent to take a fair and reasoned decision.

Not an argument for or against, just a point which occurred to me and on which another, more informed than I, might care to comment.

As Merpel has already posted previously, at the last meeting in June the AC already asked the EBA to make a proposal for dismissal of the BoA member. On 17 September 2015 the EBA rejected the request as inadmissible. So the AC is just asking for the same thing again; why do they expect to get a different answer?

The reasons for non-admissibility have not yet been published but I hope that they are. In a German court, a case might be deemed inadmissible if the evidence in support of that case was gathered illegally e.g. by covert surveillance without just cause. Anyone remember the story about the keylogging software, which may have led to the so-called "defamer" being identified?

And no doubt the cry "The EPO is not subject to German law! We are immune!!" will go up again. But how large is that fig leaf, actually?

Article 3 of the Protocol on Privileges and Immunities: (1)Within the scope of its official activities the Organisation shall have immunity from jurisdiction and execution... (4)The official activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical operation, as set out in the Convention.

The question has to be asked, then, whether (1) placing spyware is stricly necessary for carrying out the functions of the EPC, and if not, whether (2) such acts therefore do not enjoy immunity from (German) jurisdiction. Consequently is evidence acquired illicitly deemed inadmissible?

This also raises the question whether the EPO broke German law and can be prosecuted. Looking forward to publication of the reasons...

P.S. Because the EPO pretends to be immune from national laws absolutely, I am still struggling to find in the EPC the relevant provisions about defamation; I am sure that the President is aware of the contradiction between invoking national laws regarding defamation while claiming immunity from national laws regarding privacy.

I thought human rights law did not apply within the EPO? Protocol on Immunity and all that?

If the EPO is really immune to national/EU human rights and employment law principles, then the EPC must surely be a self contained law code from which all authority within the EPO ultimately flows. If the EPC says the EBOA has to propose removal (and it does, at Art. 23(1)), then that is what must happen.

I can't see how the president is any more qualified to have the final say - are you suggesting that he is more competent to take a fair and reasoned decision?

"P.S. Because the EPO pretends to be immune from national laws absolutely, I am still struggling to find in the EPC the relevant provisions about defamation; I am sure that the President is aware of the contradiction between invoking national laws regarding defamation while claiming immunity from national laws regarding privacy."

Agreed. I find it hard to believe the EPC was drafted with absolute immunity in mind - otherwise it would surely need to be a bit longer (e.g. to deal with aspects of law that are not patent related).

I am afraid that no amount of ridicule shall be spared to the sad story that the EPO has become. There is a communique from Battistelli on the Intranet published today about board of appeal member. Not only Battistelli does not respect the secret of investigation, be the whole communique is downright bizarre, implying that the member was a dangerous hacker, armed and a nazi fanatic.

So: for the benefit of our applicants: watch out for armed board of appeal members in your next oral proceedings. Who would have thought that patent law could be so dangerous?

Under Article 12a(6) RPEBA, the "accused" may appoint a person to advise or represent him, with oral proceedings being available. I cannot see the EBA not being influenced by a competent employment law attorney, arguing the "evidence" obtained being inadmissible (spying software on computers available for public use etc.). But how does the accused instruct a representative when according to the staff regulations all must be kept confidential with no-one else being informed? Which takes precedence?

The EBA decides not to make the requested proposal.Enter BB stage right flanked by VP4 and VP5 who vigorously argue that the proceedings before the EBA has violated the accused's human rights.Thereupon BB persuades the AC that in order to remedy this unfortunate situation the accused must be summarily dismissed.The AC immediately assents to this proposal emphasising that it has always respected the fundamental rights of staff and intends to make no exceptions for Board members.

Kittycatkitten,The story is revealed by the president only after the details were made known on the fd.nl website yesterday. The journalist of the FD newspaper says that the EPO had confirmed the facts so BB was actually only repeating what was known. Who told the journalist is not clear.

I agree it would be interesting to see the reasons for non-admissibility of the request, but they may be much more prosaic than you suggest. It might just be that RPEBA Art 12a allows the AC to request a proposal for removal from office, but the AC itself hadn't done so. The request had just come from Jesper Kongstad.

So now there will be a request approved by the whole AC.

If the evidence was gathered by illegal surveillance, perhaps that might be a reason why the evidence could be ruled inadmissible. But it wouldn't be a reason why the request would be inadmissible (whether made by Mr Kongstad or by the whole AC).

Rather, I think what should happen is that the request would be admissible and the evidence should be examined. If as a result all or part of the evidence is found to be inadmissible, with insufficient admissible evidence remaining, then the answer would be to deny the request for lack of proof.

I'm sure Mr Battistelli would be entirely philosophical about such a result. (Not.)

You may well be right, and it wouldn't be the first time that the EBA has reduced a potentially juicy case to a dry legal principle (and that's not a criticism; it's a skill!) But while the public users of the EPC system are kept in the dark, those who fund the system in fact, it's possible to speculate. I personally believe that the keylogging/spyware story still has legs in one form or another, and that the Boards would not just take lying down being spied on by the Executive.

I don't think you have seen the text. The whole story is downright ridiculous and I feel ashamed that the President wrote such a blatant piece of propaganda. And I don't know who is behind the fd.nl story, but it simply does not make sense either. I long for a time where journalists used to check their sources.

Are we really supposed to believe that armed nazis roam the Isar building disguised as members of the board of appeal "aiming to destabilise and harm the Office"? What next, the SUEPO members under investigation are al qaida executives? Abu Bakr stockpiles intercontinental missiles in the EPO garage?

There is only one person harming the Office in recent times and he sits in the 10th floor.

KcK,Yes, I have seen both texts. I agree that they ring incredulously but my point was only that the disclosure in house came after an external disclosure - his hand was almost forced in that. Although of course, if he had been the instigator of the press revelation in order to be obliged to reveal, 'reluctantly', confidential information?The difficulty now is that there is nothing that can be said or done by him which is taken by anyone at face value. I have no idea of the facts of the case or the level of hyperbole being used. Hopefully, justice will out.

Obviously a vicious disinformation campaign is now being started against the allegedly misbehaving board member, presenting him as a dangerous nazi in possession of nazi propaganda and arms. There is however no single word of such accusations in the published report of the recent session of the administrative council, from which it is clear that the accusations retained by the Disciplinary Committee are restricted to quite different issues, which come closer to whisleblowing:"The Disciplinary Committee focussed on acts of unauthorised disclosure of non-public information and critical opinions relating to Board of Appeal activities outside the EPO, while using pseudonyms as well on activities of spreading accusations and attacks or threats against the EPO and its members, either directly or indirectly using anonymous statements and pseudonyms, both inside and outside the EPO."Why does this disinformation campaign occur just now? And what do you think is its aim? So who is behind it?

How on earth do all these weapons, keyboard-loggers and such things even get into the office?

Why is suddenly "German law" applicable? I think it might be US law (see FIFA).

Why should extremist network(ed) organisations try to attack the EPO's mission, values, way of live ... Is it some other party of the IP5, who would economically profit from destabilising and harming the Office? Who would have the skills and resources to sabotage the mission and the reputation of the EPO, has weapons and tools of cyber-criminals? Some national security agency? Or has a Control Risks agent simply gone rogue?

You forgot to mention the two most important points of the Battistelli communique published today on the Intranet.1) The suspended member of the BoA just got a new sanction “half of his basic salary shall be withheld”. The communique does not indicate if it is a decision from the AC or an initiate from the President BB himself. Until now the BoA member was suspended with full salary.2) The President BB indicated: “Regrettably, it appears that this individual did not act alone and is one part of a network including internal and external individuals, aiming to destabilise and harm our Office. These acts represent a direct threat for the future of the staff. You know that you can count on my determination and commitment to take, with the full support of the EPO's management and staff, the necessary appropriate measures to avoid such harmful acts occurring in the future, regardless of the status of those involved. Together we will protect our mission, values and integrity.”

The threat is to staff representatives and to the members of the (Enlarged) Board of Appeal. Other people will be dismissed and their status will not protect them.

I am a bit perplexed by the statement from the AC.It implies that all the applicable rules and laws were followed properly, but it actually does not say it. It says that applicable rules and laws were followed, but not that all such rules and laws were followed. Is it then possible that the DC provided some comments about the key-loggers?

I also note that the statement says that the DC focussed on the issues but it does not say that the DC considered the allegation as proven. It only implies that. So I wander. If the DC would say that it considered that dismissal is appropriate, if the allegations are ever proven, whether the statement from the AC would informe about such insignificant "if".

Whenever I watch news, especially from Parliament, I hear nothing but "sabotaging" by MPs opinions of other MPs. And to all the grievance, not even anonymous one. We call it democracy over here.

Given that the EPO does not have democratic representation in its structure, art. 4a EPC is being ignored anyway, it's not clear to me where a dialog and democratic discussion on reforms can take place.

After all, reforms taking place now at the EPO fit difficult in a framework of administrative changes. Independence of the BoA and introduction of a unitary patent touch fundamentals of patent protection, which, traditionally, is under discretion of the state legislative branch.

I'm so shocked by the Sueddeutsche´s article that it's at this moment hard for me to grasp a clear thought. So the Sueddeutsche Zeitung gets access to the "confidential investigation report" written at the order of the president, by his team... and without questioning it, concludes "oh, so that's how it is!"

Why does the Sueddeutsche not invest a litte bit of time to see behind the facades, to question *who* wrote this report, *at whose initiative* and *for what purpose*? Apparently they seem to take what is written there for granted, without questioning it... Is the Sueddeutsche not aware that this "report" might in no way to be compared with what would be the report of a neutral investigation instance, e.g. from an investigation unit working under either German or European law?

Is this what the Sueddeutsche would call "investigative journalism"?If so, that's a really sad day for what I would consider should be the standards of a large newspaper...

Interesting article in SDZ. There it is indicated that the member of the BA in question was afraid of the reformes at the EPO, becuase, he feard that the introduction of the UPC would render the BA superflueous and he would loose his job. Is it not far fetched, since that would require a reform of the EPC and, until such reform would enter into force, the person in questoin would be most likely retired?But is that also not a way of putting pressure on the EBA now to distance themselves from this member to indicate that they are not byessed by such fears. Is there also not a message: do not demand a reform of the EPC, because, if we reform it, we might get rid of you all together?

"Besides, as the vilest Writer has his Readers, so the greatest Liar has his Believers; and it often happens, that if a Lie be believ’d only for an Hour, it has done its Work, and there is no farther occasion for it. Falsehood flies, and the Truth comes limping after it; so that when Men come to be undeceiv’d, it is too late; the Jest is over, and the Tale has had its Effect…"

The explanation in the SZ article that the member of the BA in question was afraid of the reforms at the EPO, because he feared that the introduction of the UPC would render the BA superfluous and he would loose his job reminds me of an official statement some time ago that examiners went on the streets because they refused to take chinese prior art into consideration for their searches. This, and the belief that the reader will be stupid enough to swallow such obvious tales, point at a single source.Profiler

The author of the article in the Süddeutsche claims that she has access to the Investigation report. This being a cenfidentièl document in an ongoing legal procedure, this points to a whistleblower as the source, Not only does this constitute a breach of confidentiality, it is also highly défamatory against the judge concerned. But is it really a whistleblower? A substanially identical text was to be found on the intranet of the office which had become public on techrigth and signed by the president. Why does this not justify disciplinary measures against him along the same line of allegations as against the judge? Disclosure of non public material. Should the investigation unit raid his office and computer? Maybe they'll find nazi propagand maybe not, childporn or not, maybe just a lighter and an ashtray which can be used as forensic evidence he is not respecting the officewide non-smoking dispositions?

The thing is going over the top. Rumour has it a Vicepresident Is on sick leave. May a similar occurence with the president be the only remaining way out of a totally desperate situation for the AC?

Ashtray, you say. What! This is serious. Was it a heavy one? If so, a clear case of a "weapon" at the ready, to injure any visitor to his office.

I mention "weapon" because that was the serious and shocking accusation levelled at him, wasn't it?

Now think, how does one define "weapon". Like an EPO Examiner with a claim that recites "weapon" and cites a shepherd's crook? Anything capable of being used to fight off an attacker, that EPO person might argue.

Now think of all the knives in the EPO canteen. Is each one of those a "weapon"? If you are going to watch a game of football (or board a plane) and you have a cutlery knife or a heavy ashtray in your pocket, what do the security authorities say, when frisking you? But if you are in your room at the EPO and the security goons find a canteen teaspoon in your desk drawer, what then?

Allegedly, two clubs (Schlagstöcke) were found in his office. He claims to have used them for back exercises (Rückenübungen).

Without having seen the actual objects (and the exercise he claims to have use them for) I will not try to say anything about the credibility of the defense. But if the EPO president is arguing that he had these clubs in his office intending to use them against the unitary patent and the UPC, then that doesn't seem very realistic.

I suppose there are more people within and without the EPO keeping weird objects in their office. So what, one could say. As long as they can't spontaneously catch fire or explode...

These rumours have been circulating in the office corridors for quite sometime, with members of the investigation unit the only likely source. What is really shocking, is that they get published on the SDZ, a widely read German newspaper, with the likely source being someone well above the Investigation unit. The SDZ also cites the nationality of the investigated which makes it possible to identify him from publically available sources, his nationality not being among the most common. It has become a witch hunt.

Like a mighty army moves the "apparatus" of BB;Brothers, we are marching onwards towards victory.We are not divided, all one cosy "Cosa" we,United in ENArchist spirit, shielded by immunity!

What the I.U. established that we hold for true.What the Disciplinary Committee believèd, that we believe too.Whatever BB sayeth, the Council true shall hold,Kingdoms, nations, and observer states, in destruction rolled.

Crowns and thrones may perish, kingdoms rise and wane,But our mighty ENARQUE constant shall remain.SUEPO hordes can never gainst his will prevail;Staff have VP 4 and 5's promise which can never fail.

you're right. Actually, most of the people working at the EPO are utterly shocked by what is going on.

It looks like since Mr. Battistelli couldn't have it his way - bypass the EBA to have the guy dismissed - he resorted to the vilest trick in the book: character killing.

Therefore, even if the EBA will give a negative opinion on his dismissal, he will be able to argue that by trying to protect a violent (armed) nazi extremist the EBA, again, has failed to “fulfil its institutional and administrative role”. The guy will be dismissed anyway and the EBA will be publicly shamed.

Mr. Battistelli doesn't ever bother to show some surprise at the fact that confidential documents in an ongoing legal procedure have been leaked - something which should be considered as serious as the facts reproached to the member of the BOA.

At the same time, I'm shocked that a journalist does not understand the gravity of render public these kind of accuses against someone who has not been yet condemned.

According to information the president had planned to publish about the judge right after the decision expected to be taken by the Admin C. (this course of action is minuted after a recent PD mac meeting)

Only the Admin C. did not take the "right" decision and Battistelli could not let go since he his the master, the grand master !

According to the good old principle calomniez, calomniez, il en restera toujours quelque chose, Battistelli - who of course does not have anything to do directly with the dissemination of information - sent his faithful VP1 a man you can always rely upon for a coup bas - to meet with the journalist of the Financieele Dagblad (plus the new DirCom ex from Transparency international and a couple of useless management pets...).

While the SDZ article in some occasions fails to use the conjunctive, is clearly biased towads the president, the lady is basically doing her job. Would not award her a Pullitzer but worse things have happened in the German press., also reputated press, to start with fake diaries of Alexander the Great or was it someone else., The outcry should not go against the dome what lame messenger but against the sender of the message, who clearly was not a whistleblower as pointed out herein above. The message is directed not only to the staff but also against the attorneys. Objectively the unified patent is not in their interest, they would loose a lot of business before local offices and courts, translations to start with. This is a message not to fight back what Is BBs mission in lfe.. They should remember that the European Patent Office has disciplinary power also over them and can deprive them of their approbation. Indeed there is ongoing concern but predating the unified patent, that the role of the boards of appeal is incompatible with the constituitonal framework of a number of states, noably Germany and even the ECHR. . Fact is that refusals and revocations issued by the boards who may or may not be a judicial instance in the first place cannot be appealed before any and less so a second instance, even if one is generous and considers them a first instance. A patent court can never accept that a substantially administrative board ( NB neither court nor tribunal) may definitvely decide a legal issue without judicial review. Yes, they are doomed, even without the unfied patent.The only reason they keep the EPO, a non EU entity in the game at all, is the fact it circumvenes the Lissbon treaty language regime. Formerly not being a EU institution it does not have to accept submissions in all the official languages of the EU, they only provide English, German and French. translation cost for other languages falls on the parties, not the office.

You don’t need to be a conspiracy theorist to be concerned at the Member States approach.

Article 4aEPC has never been followed despite its apparently mandatory nature:

A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system.

it is worth remembering that this Article has a sister Conference resolution:-

Conference Resolution

The Conference notes the progress that has been made in taking forward the process of modernisation and reform of the European patent system which Ministers initiated in Paris last year and reaffirmed in London this year. The Conference urges that the revisions to the European Patent Convention which it has adopted should be ratified by each Contracting State as soon as it possibly can.

The Conference recognises that much important work remains to be done. On the one hand, some subjects were not on the agenda of this Conference. Other subjects the Conference felt had not yet been sufficiently thought through for this to be the right time to make a binding decision on them. In particular, recognising the importance of the issue, the Conference agreed to maintain for the present the European Patent Convention’s current provisions on software. This will provide the opportunity for full consultations already underway on this issue to be completed, but the Conference is fully aware that this is not a subject that can be left open indefinitely. Further analysis of the appropriate context in the Convention for certain provisions should also be carried out, for example concerning biotechnological inventions.

Having in mind the need for further development, the Conference urges the Administrative Council and other relevant bodies of the European Patent Organisation as a priority to make preparations for another Diplomatic Conference. Proposals for further revision might in particular relate to software and such changes as are required to implement the Community patent without delay, bearing in mind the declaration of the heads of state and government of the European Union made in Lisbon in March 2000.

and the Revision Act states as a preamble:-

WISHING to promote innovation and economic growth in Europe still more effectively by laying foundations for the further development of the European patent system,

Since coming into force of EPC 2000 a few things have happened:-- The Unitary Patent- The Unified Patent Court- Concern over the independence and functioning of the Boards of Appeal- Many decisions of the Enlarged Board of Appeal, including decisions concerning exclusions from patentability (one of the subjects the Conference Resolution alluded to)- The rise of nazi sympathisers in the EPO

(This last a bad joke in poor taste and a distraction from real problems in the EPO).

If these are not ”issues pertaining to the Organisation and to the European patent system” it is difficult to see what is.

Further, rumbling negotiations on harmonisation and in particular TTIP has caused concern among some that change will be forced change rather than change as a result of informed debate.

It may be that there are those who think that the last place to expect informed debate is from the posturing politicos of the European Parliament, and I have great sympathy with that view, but this practical problem avoids the real issue:-

- When the Member States are not willing to follow the EPC, where is their concern for law?

Even if the relevant ministers just met, had a cup of tea and a chat and then went home, they would meet the literal meaning of Article 4a EPC, but it appears even this is seen as too dangerous.

EPOGATEAccording to Benito B"Battistelli sent his faithful VP1 a man you can always rely upon for a coup bas - to meet with the journalist of the Financieele Dagblad (plus the new DirCom ex from Transparency international and a couple of useless management pets...)"Should this be true, the organised revelation to journalists of the contents of a confidential dossier - including accusations which obviously were not even pursued by the disciplinary committee - would not only be a first-grade scandal, but also amount to a criminal act against the concerned employee.How long will the AC now be able to oppose an official investigation in this action and the lifting of both the president´s his second fiddles' immunity?Investigative journalist

BB said: “Regrettably, it appears that this individual did not act alone and is one part of a network including internal and external individuals, aiming to destabilise and harm our Office. These acts represent a direct threat for the future of the staff. You know that you can count on my determination and commitment to take, with the full support of the EPO's management and staff, the necessary appropriate measures to avoid such harmful acts occurring in the future, regardless of the status of those involved. Together we will protect our mission, values and integrity.”

This sounds like the investigation unit has done only half of a job. Subsequently the AC did a half of a job as well, as usual! It’s very likely that the BoA will dismiss the case again and first want to wait for the full story in the well informed Press.

This leprechaun is also wondering if there is also not a further 2TB hard disk drive with Pandora written on it with ABC… information, threatening the 38 EPO member states and especially the EPNetwork. Maybe we should also investigate the royal suites on the 10 th floor in the Isar building.

As regards the controversial memorabilia, it seems that the accused was preparing for an interview as head of the investigation unit since his job will be on the line.

One should not overlook this important aspect. Only unauthorised spreading of internal information is not OK and must be prosectued at the EPO. Authorised spreading of internal information is OK. Thus, if no investigation by the investigation unit of the just pubished information about the board memeber is started by the EPO´s investigation unit, it means that it was authorised. Thus, now BB has no choise but to start the investigation, or to admit that he has OK-ed the spreading of the internal information about the board member.

"Actually, most of the people working at the EPO are utterly shocked by what is going on."

Well who cares as long as the production figures don't suffer ?

Remember, as BB told the AC, there hasn't been a single day of strike during 2015.Obviously the situation has greatly improved over 2014 in that respect.Rumours of social unrest are greatly exaggerated, just a few disaffected SUEPO radicals ...

Concerned examiner, And today Suepo has indicated that the meeting with FD was well planned and named the participants (confirming the above comments) and also pointing out that the EPO has signed contracts with external PR for risk/reputation management for not inconsiderable sums. The new article in FD is presumably part of the plan. The title above is fairly clear - " we were victims of an orchestrated campaign". Repeating the narrative of somehow discrediting the staff member while also attributing the ability to bring the office to its knees? And threatening any other dissenters with the 'we know he wasn't acting alone' and we're still investigating?

If it is all true, maybe someone should ask why anyone would dislike BB and/or his policies so much? Or rather, why so many?? It all seems unusual.

Napoleon and BavariaMunich-based IPcats should not miss the State Exhibition "Napoleon and Bavaria" which will close on 31 October.One impressive exhibit is the bullet-perfored jacket of Johann Philipp Palm, a German bookseller executed during the Napoleonic Wars.This is his story:In the spring of 1806, the Stein publishing house sent to the bookselling establishment of Stage in Augsburg a pamphlet (presumably written by Philipp Christian Yelin in Ansbach) entitled Deutschland in seiner tiefen Erniedrigung ("Germany in her deep humiliation"), which strongly attacked Napoleon and the behaviour of the French troops in Bavaria. On learning of the violent rhetorical attack made upon his régime and failing to discover the actual author, Napoleon had Palm arrested in and handed over to a military commission at Braunau on the Bavarian-Austrian frontier, with peremptory instructions to try the prisoner and execute him within twenty-four hours. Palm was denied the right of defence, and after a mock trial on 25 August 1806, he was shot the following day without having betrayed the pamphlet's author.https://en.wikipedia.org/wiki/Johann_Philipp_Palmhttp://www.landesausstellung-ingolstadt.de/landesausstellung-2015/informationen/

to those who reacted to my post above : I maintain what I wrote namely that several little birds from the EPO confirmed that VP1 met with this very "objective" journalist of the Financieele Dagblad (from the article of whom one can see that he did not bother to cross-checked anything with the suspended judge or his lawyer).

Another info from my little birds: when speaking to journalists Battistelli currently tries to sell them first thing : the nazi stuff and weapon he pretends the suspended judge had in his office (I have no idea whether such items were indeed found or not since I have not seen the accusation file) but BBconsiders this is a "sexy" topic for the press. Then he of course shifts to his usual OCD type story-telling according to which he is the "poor target of conspiracy by a minority of extremists from SUEPO since he modernises the EPO...."

Lovely innit ? Fortunately Battistelli does not have an army at this disposal or many would have died by now.

This is THE elephant in the room at this stage but let's brake a taboo: in particular in the middle management who was recently given to witness his pathetic performance in Munich and in The Hague : every one at the EPO considers him unfit for the job, seriously sick and very dangerous.

According to this letter on Techrights, as of 1 January 2016 EPO staff will be forbidden from "gainful employment":

http://techrights.org/2015/10/21/epo-president-and-repressions/

Those of us who deal with the Examining Divisions on a regular basis might question whether EPO employees are already acting in that spirit... but, joking aside, this does appear to be a rather loosely-worded ordinance. Does anyone know what the intention behind this is? Is this intended as a union-busting move?

'..focussed on acts of unauthorised disclosure of non-public information and critical opinions relating to Board of Appeal activities outside the EPO, while using pseudonyms as well on activities of spreading accusations and attacks or threats against the EPO and its members, either directly or indirectly using anonymous statements and pseudonyms, both inside and outside the EPO.'

Has any further detail been given on what the activities and threats might have been? It would be nice to be in a position to judge whether the seriousness of the alleged misconduct merits the amount of time and effort the AC, EBA and upper echelons of the EPO management appear to be devoting to this.

I would not be surprised if the "unauthorised" disclosures relate to the pending constitutional appeals pending in Germany which are critical of the EPO and in particular the lack of redress against formalistic decisions revoking patents at the TBA level.

Even worse, the wording is not "gainful employment" but "gainful activities".

It used to be "employment" in the previous versions of the EPO codex. However, when the EPO codex was updated, every occurance of "gainful employment" was replaced by "gainful activity", which of course is much broader in scope than "gainful employment".

So "every gainful employment requires the consent of the EPO" became "every gainful activity is forbidden".

GainfulActivities and pantagruel,In fairness, tech rights has slightly misunderstood. The rules referred to relate to staff on disability pension rather than all staff. That said, the EPO has tightened up the rules on who can retire early due to incapacity. The office has taken upon itself the mantra that people should be seen as being available and it's a matter of reintegration down to working 20% of your time I.e. 75% disabled does not mean you can retire on a disability based pension. In return, if you are that bad the EPO considers you should not have employment or activities, paid or not paid (it all depends on the language unfortunately) for anyone else. And of course you must live a minimum of 10 years and till at least your 55th birthday near to your place of employment (you may recover a bit!).Given that the office has also got rid (unilaterally) of the lump sum payment for those who do meet the new criteria, the options are not very good. Disabled, banned from doing anything and obliged to live away from your home country and without the injection of cash to, for example, convert a home for new needs (ramps, lifting devices, wheelchairs etc.).Not the offices greatest move but all part of the clamp down based on a fear that some may be swinging the lead. Of course, the ones who will suffer the most will be the ones who do need support the most. I am embarrassed.

"The office has taken upon itself the mantra that people should be seen as being available and it's a matter of reintegration down to working 20% of your time I.e. 75% disabled does not mean you can retire on a disability based pension.

KKtK,Might need to check. I think a) it only applies to permanent staff and b) VPs are on contracts (up to 5 years) which probably negates the disability details. Presumably contract staff have other forms of insurance?

Those of us who deal with the Examining Divisions on a regular basis might question whether EPO employees are already acting in that spirit... but, joking aside, this does appear to be a rather loosely-worded ordinance. Does anyone know what the intention behind this is? Is this intended as a union-busting move?

Not quite sure why so many attorneys feel the need to take a pop at us examiners whenever they get the chance, whether in jest or not. It's hardly helpful, and not even particularly clever. I'm sure we could make similarly "witty"remarks about patent attorneys if we felt the need, but so far no-one has stooped quite that low...

To Kitkat, if you waited years to get a search or examination report and then had to read some of the unhelpful, or simply rubbish, objections I get to see, you might understand why. You might also like to bear in mind that while many of us recognise that EPO examiners appear to be coming under a lot of pressure from the EPO management, many of us work under at least as much pressure with the additional benefit of the chance of being sued for negligence if we get it wrong. As such sympathy for the poor EPO examiner's plight is sometimes difficult to find. You may be having a hard time, but so are a lot of us and I have not seen attorneys on here continually bemoaning our lot.

Working in a small practice, I not only have to be familiar IP law in general, including the law in important jurisdictions such as China and the US, I also have to take on some of the administrative burden, dealing with tax authorities, accountants, the bank, professional regulatory requirements etc. I also have to turn stuff around under pressure at short notice when a client needs a patent application drafted and filed or infringement advice at short notice. How many Examiners can be found at their desks at 9, 10, 11 at night?

Perhaps an occasional recognition that EPO examiners are not the only people out there with stressful jobs and that however bad it may be, your lot is better than that of huge numbers of European workers would not go amiss. However, much I dislike my job at times, I can look back to years working on the shopfloor, being made redundant (twice) and watch the news to see workers across Europe staring redundancy in the face and be thankful for my lot.

Apologies if that comes across as a bit sanctimonious, it's not meant to, but a little perspective in some of the posts on here would not go amiss.

Oh, and if the EPO Examiners on here feel the need to share some of their witty views on patent attorneys, I can certainly stand to hear them.

I apologise if I appeared sensitive, but it gets a bit tiresome when it appears that applicants, attorneys and epsecially our own higher management all think that we're all a waste of space. I can assure you that the vast majority of us examiners do our best to do good work in a timely fashion...

What people seem to forget is that, under the present President, we can effectively be sacked on a whim, with little or no comeback. That is a very unsettling environment to work in. Furthermore, we are expected to produce ever more "products" (that is how they are labelled by management) whilst at the same time being forced to use software which is so poor that it's bordering on a joke. Such an environment of pressure, fear and distrust is not conducive to us delivering a quality product, whatever the President and VP1 might choose to believe. We used to pride ourselves on delivering, and being given the time to deliver, patents that were worth something; unfortunately, that is apparently no longer what our beloved President and his toadies want or expect from us.

Mirabile dictu, extraordinary session cancelled !Enlarged Board renders the President spancelled !Leaving the Council in a difficult spot. To pervert justice's course or not ?Dastardly leaks to the press come next,Observers of Eponia are completely perplexed.Whatever next ? Who can claim to know ?Nunc Quo Vadis EPO ?

Nunc quo vadis EPOSemper spe, I don’t knowLatin rhyme a bit pretentious?Yes it is, but sounds as though there is some substance behind it, hence its frequent use by lawyers, doctors, and others seeking to sound authoritative when wondering what the hell is going on. You are in good company.

I would have thought that the accused's five year period as a member of a board would expire before the EBA reaches a decision. Since it is most unlikely that the President will propose an extension to this term, the end result will be the same.

New comments from Siegfried Bross: Germany should not have joined the EPC:http://www.juve.de/nachrichten/namenundnachrichten/2015/10/epa-disziplinarverfahren-verwaltungsrat-und-battistelli-handeln-ohne-rechtliche-grundlage

@Concerned Examiner: Many even more concerned employees realize they should not have joined the EPO ...

"Man looks in the abyss, there’s nothing staring back at him. At that moment, man finds his character. And that is what keeps him out of the abyss." (Lou Mannheim, Wall Street)

"So, what you're telling me, is that the music is about to stop, and we're going to be left holding the biggest bag of odorous excrement ever assembled in the history of capitalism. " (John Tuld, Margin Call)

Article 4a EPC, or the music will stop. Maybe not now, but in only a few years from now.

Yes, to the rule of law?? In the EPO??Suepo is today reporting that last Friday a further two members of the Staff Committee were to be picked up for meetings with the Investigation Unit, the unit which reports to BB, his own private unit. That happened on Friday and while no details can be given by the subjects to anyone about what was the topic (to do so is forbidden by the EPO and would lead to further disciplinary measures), Suepo reports that one of them returned 'visibly shaken' and 'appeared to have suffered a ...breakdown'. Since none of them are native English speakers, the exact nature of this is unclear but 'Medical help was called' and the person 'was wheeled out of the office in bad shape'. The second member was due to be interviewed but it's not clear whether this did or did not happen although the second member was apparently 'noticeably distressed' and 'had to rush for medical help externally'.As I write this , quoting from suepo's exact words, I feel a bit sick about what these representatives are going through, no matter how exaggerated the report may be. They really don't deserve this. Nobody does, when they have no legal redress. In the great scale of this weekend, this is relatively minor but pious words on the EPO.org site about respect for democracy in response to the unrelated atrocities later in Paris slightly stick in the throat.

Freedom values for Europe according to BB.Here is the SUEPO communique:

Many of you have called or written enquiring about what has happened to the StaffRepresentation last Friday, and offering support. We are grateful for this.What we know from how the events panned out is this:• Jesus was picked up from his office by President’s emissaries. Upon return, he wasvisibly shaken and appeared to have suffered a nervous breakdown. Medical helpwas called, and he had to be wheeled out of the office in bad shape. He appears tohave been subjected to severe, concerted and wilful pressure, especially intendedto harm and destabilise.• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, hehad to rush for medical help externally.• The other members of the Staff Committee who witnessed the event were alsodeeply perturbed.Given the regulations in place, our colleagues are not in a position to inform anyone, so wedo not know the Office’s reasons or pretexts for targeting them. However the succession ofevents strongly suggest that it was in relation to their duties.Staff representatives and union officials should be able to perform their statutory taskswithout the danger of reprisal, much less danger to their health. In addition to medicalcare, steps will be taken to ensure that appropriate legal representatives are informed andinstructed to act. Criminal endangerment of the health of staff members is a clear violationof the Office’s duty of care and amounts to crossing a line. All those involved in thisdereliction of duty will have to assume the responsibility for their choices.We will inform you asap on any further developments.Please stay tuned and alerted, and contact us if you have any input.The SUEPO Committee The Hague

And the latest news from BB and Lutz, is that the union representatives of Vienna, have also been suspended. Now BB can move DG3 to Vienna, and those that he wants to keep from Vienna can be moved to Munich, the rest of the Vienna staff will be dumped. This person wants to ruin the lives of nearly 300 employees. There are practically as many people ill within the office, as are working.

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